§ 6000.1013. Individuals who are not competent and who do not have end-stage medical conditions or are not permanently unconscious.
(a) If an individual is not competent to make a particular nonemergent health care decision, another person must make that decision on the individual’s behalf.
(b) Under Act 169, when a guardian, health care agent or health care representative will be making the decision, the attending physician determines whether an individual has an end stage medical condition or is permanently unconscious.
(c) When a surrogate health care decision maker is needed to make a nonemergent health care decision for an individual who neither has an end-stage medical condition nor is permanently unconscious, the health care decision maker should be chosen in the following order:
(1) Health care agent. If the individual, while competent, has executed a valid advance health care directive that designates a health care agent and the health care agent is available and willing to make the decision, the health care agent should make the health care decision for the individual. See 20 Pa.C.S. Chapter 54, Subchapter C (relating to health care agents and representatives).
(2) Guardian of the individual’s person.
(i) If, under Pennsylvania’s guardianship statute (20 Pa.C.S. Chapter 55 (relating to incapacitated persons)), a court has already appointed a guardian to make health care decisions on the individual’s behalf, the guardian should make those decisions for the individual.
(ii) If a person who executed a valid health care power of attorney is later adjudicated an incapacitated person and a guardian of the person is appointed by the court to make health care decisions, the health care agent named in the health care power of attorney is accountable to both the guardian and the individual.
(iii) The guardian has the same power to revoke or amend the appointment of a health care agent as the individual would have if he were not incapacitated, but may not revoke or amend the instructions in an advance health care directive absent judicial authorization. See 20 Pa.C.S. § 5460(a) (relating to relation of health care agent to court-appointed guardian and other agents).
(3) Health care representative.
(i) In the absence of a health care agent designated under a valid advance health care directive or a court-appointed guardian of the person with authority to make health decisions, an available and willing health care representative should make the health care decision.
(ii) In descending order of priority, the following persons can act as health care representatives for individuals:
(A) A person chosen by the individual (in a signed writing or by informing the individual’s attending physician) while the individual was of sound mind.
(B) The individual’s spouse (unless a divorce action is pending).
(C) The individual’s adult child.
(D) The individual’s parent.
(E) The individual’s adult brother or sister.
(F) The individual’s adult grandchild.
(G) An adult who has knowledge of the individual’s preferences and values. See 20 Pa.C.S. Chapter 54, Subchapter C.
(4) Facility director.
(i) In the absence of any other appointed decision maker or willing next of kin, the facility director becomes the health care decision maker under the MH/MR Act.
(ii) Under the MH/MR Act, the director of a facility may, with the advice of two physicians not employed by the facility, determine when elective surgery should be performed upon any mentally disabled person admitted or committed to the facility when the person does not have a living parent, spouse, issue, next of kin or legal guardian as fully and to the same effect as if the director had been appointed guardian and had applied to and received the approval of an appropriate court therefor.
(iii) Section 417(c) of the MH/MR Act (50 P.S. § 4417(c)) specifies that the facility director may authorize elective surgery, but the Department has consistently interpreted that section to recognize that the facility director’s authority also encompasses health care decisions generally.
(iv) The facility director may authorize elective surgery and other treatment only with the advice of two physicians not employed by the facility.
(v) When the facility director becomes the surrogate health care decision maker for an individual who does not have an end-stage medical condition or is not permanently unconscious, the director should first review the individual’s support plan and relevant medical history and records to help identify the individual’s medical status historically and immediately prior to making a surrogate health care decision.
(vi) The facility director should be informed of the decision to be made and gather information based on the direct knowledge of those familiar with the individual.
(vii) In this manner, the facility director will have sufficient information to make the decision that the individual would make if able to do so.
(viii) Even when another surrogate health care decision maker is identified, the facility director should continue to monitor the situation to ensure that decisions are made with the best interest of the individual as the paramount concern.
(ix) In the event of a short-term absence of the facility director, the director may assign a designee to perform these functions.
(x) The assigned designee may only be a person authorized to perform the facility director’s functions in the director’s absence.
(xi) The facility director may not authorize a DNR order for a person who is not competent and does not have an end-stage medical condition.
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